‘Supreme bombshell’ stuns the continent
Publish date: 04 September 2017
Issue Number: 741
Diary: IBA Legalbrief Africa
Category: Kenya
On a weekend when the world commemorated the 20th anniversary of the death of Diana, the Princess of Wales, the east African nation of Kenya – which has deep ties with the British monarchy – was rocked by an extraordinary court ruling that promises to change its political landscape forever, notes Legalbrief. Pointing to widespread irregularities in the electronic transmission of vote results, Chief Justice David Maraga declared President Uhuru Kenyatta's victory ‘invalid, null and void’. The Supreme Court ordered a new poll within 60 days. The decision to annul the election was unprecedented on a continent where governments frequently manipulate and intimidate the judiciary. Furthermore, Friday’s ruling marked the first time on the continent that a court had ruled against the electoral victory of an incumbent. And opposition leader Raila Odinga, whose coalition brought the petition against the election board to the court, said some officials from the commission should face criminal prosecution.
Kenyatta on Saturday said the country has ‘a problem’ with its judiciary that must be fixed. ‘We shall revisit this thing. We clearly have a problem,’ he said, referring to the judiciary. A report on the IoL site notes that he was speaking on live television at his official State House residence in Nairobi after he met governors and other elected officials from his Jubilee party. On Friday during an impromptu rally in Nairobi, he accused the court of ignoring the will of the people and dismissed the Chief Justice's colleagues as ‘wakora’, or crooks.
Analysts saw the President’s latest comments on the judiciary as a worrying development. ‘It’s extremely unfortunate that Kenyatta seems to be issuing veiled threats at the judiciary,’ said Murithi Mutiga, a Nairobi-based senior Africa analyst at the International Crisis Group. The Law Gazette reports that James Orengo, of Nairobi firm JAB Orengo Advocates, who represented the petitioners, said ‘the decision is history. The Supreme Court has done Kenya proud and lived up to the principle of law regarding elections.' Adam Colenso, partner at City firm Wedlake Bell, which was consulted by the petitioners, described the ruling as ’a momentous development of the rule of law in Africa giving encouragement across the continent to the idea that irregularities in elections can be successfully challenged in courtrooms’. Colenso noted the speed with which the court was able to rule on the petition. ’In the UK the process of preparing an election challenge for the court to hear would take much longer and there would have to be full disclosure of all relevant documents and computer records,’ he said.
The media has hailed the court ruling as a hard-fought victory for the rule of law, and sign of a maturing democracy, The Independent reports. The Saturday Standard headlined its front page ‘Maraga Thunder’, while The Star ran with ‘Not yet, Uhuru’. The Saturday Nation hailed ‘Raila's big victory’. A report on the News24 site notes that all agreed that what the Nation termed a ‘Supreme Bombshell’ was a welcome sign of the judiciary's independence. ‘Kenyans have struggled for decades to institutionalise the rule of law. We have fought, shed blood, lost lives and property in search of constitutional order,’ the paper said in an editorial. It said the ruling ‘signalled the end of the era of impunity that has painfully assailed this country for too long’. Writing in The Star, the Law Society of Kenya said every election except that in 2002 had been plagued by ‘complaints, irregularities, suspicion of impropriety’ that no court had been willing to properly tackle. The paper's editorial said the decision ‘will reverberate for years to come in Kenya and around the continent’. The press also raised prickly questions about the weeks to come. The new election must be held by 31 October, and the opposition has declared it has lost all confidence in the electoral commission (IEBC). ‘How it will conduct the next elections in the next 60 days is unimaginable,’ said The Nation.
The role of the courts as a recourse for those who suspect an election was tainted by fraud or other problems is meant to bolster the democratic process, but many judges can be subject to political pressure and the temptation to favour perceived stability over uncertainty. A report on the News24 site notes that the fact that the court bucked the trend shows independence in the judicial system of the East African economic power that has been in question in the past. ‘In the African context, it's very rare to see a court ruling against the incumbent even when processes are more or less free and fair. The state machinery usually tends to favour whoever is in charge and rule against the opposition,’ said Yarik Turianskyi, a governance expert at the South African Institute of International Affairs, a research institute based in Johannesburg. Elsewhere in Africa, some opposition leaders have expressed faith in independent courts as a potential source of reform.
